19. […] The Trial Chamber considered the “particular circumstances” of Mr. Šešelj’s representation including the fact that he is “not officially assisted by persons fluent in one of the official languages of the Tribunal”,[1] and whether disclosure of Rule 66 (A) and (B) and Rule 68 (i) and (ii) materials in English and in electronic format would affect Mr. Šešelj’s rights under Article 21 of the Statute. It held that electronic disclosure of Rule 66 (A) and (B) and Rule 68(i) materials did not breach the fair hearing principle stipulated under Article 21 of the Statute so long as reasonable and necessary assistance in the circumstances is given to an accused and noted that Mr. Šešelj would be “entitled to receive from the Registry the basic equipment and training necessary to make effective use of material disclosed in electronic format”.[2] It also ruled that in addition to Rule 66(A) material, which expressly provides for disclosure in a language the accused understands, Rule 68(i) material should also be subject to the same language requirement, because of the crucial impact of such material on the accused’s guilt or innocence.[3] Mr. Šešelj does not provide any references to the jurisprudence that the Trial Chamber allegedly disregarded in reaching the Impugned Decision. Neither does Mr. Šešelj demonstrate in what way the Impugned Decision violated his rights under Article 21 of the Statute.

63.       Based on the foregoing, the Appeals Chamber finds that the Prosecution violated its disclosure obligations under Rule 68 of the Rules to disclose exculpatory material from the Hategekimana, Ntagerura et al., and Ngirabatware cases as soon as practicable. However, having considered the exculpatory evidence against the evidence on the record, the Appeals Chamber is not persuaded that the disclosure violations materially impacted the cases of Mugenzi and Mugiraneza. In these circumstances, where any possible prejudice from the violation was minimal, no relief is warranted. However, both the Trial Chamber and the Appeals Chamber have found that the Prosecution violated its Rule 68 obligations in this case on previous occasions.[1] The Trial Chamber decided that the accused had been materially prejudiced by the Prosecution’s violation of its Rule 68 obligations to disclose exculpatory material as soon as practicable and accordingly decided to draw a reasonable inference in favour of the accused from the exculpatory material as a remedy.[2] The Appeals Chamber further recalls that the Trial Chamber qualified as “inexcusable” the Prosecution’s conduct vis-à-vis its Rule 68 disclosure obligations.[3] In light of those observations, it is clear that the Prosecution’s repeated violations of its obligations under Rule 68 of the Rules in this case negatively impacted the conduct of the proceedings and prejudiced the interests of justice. The Appeals Chamber therefore firmly reminds the Prosecution of the fundamental importance of its positive and continuous obligation to disclose exculpatory material under Rule 68 of the Rules.

The Appeals Chamber specified that the Prosecution’s obligation under Rule 68 only covers the exculpatory material which is in its possession. In the present case, the Prosecution was found to have acted in compliance with this provision.

12. Il ressort clairement de l’article 68 B) du Règlement que l’obligation du Procureur de communiquer des éléments de preuve à décharge est subordonnée à sa possession de tels éléments[1]. Or, à la lumière de ce qui précède, la Chambre d’appel constate que le Procureur s’est suffisamment expliqué sur la manière dont l’enregistrement de l’interview a été recueilli ainsi que sur son caractère incomplet, en précisant qu’il s’agissait de la seule version en sa possession. La demande de l’Appelant tendant à ce que la Chambre d’appel ordonne au Procureur de s’expliquer sur le caractère incomplet de l’enregistrement de l’interview et de le verser au dossier ne peut donc prospérer.

The Appeals Chamber found that, in the circumstances of the case, the Prosecution was not in breach of its Rule 66(B) disclosure obligation since the material at stake was available via EDS.

10. La Chambre d’appel prend note du fait que le Procureur a informé la Défense de la disponibilité des dossiers MINALOC et MRND et des déclarations de Joseph Serugendo après le dépôt de la Requête de l’Appelant alors qu’il aurait pu le faire plus tôt[1]. Cependant, l’Appelant n’a pas fait état, jusqu’à ce jour, de difficultés dans l’obtention des documents via EDS.[2] En conséquence, la Chambre d’appel considère que la demande de communication sur la base de l’article 66 du Règlement relative à ces documents est sans objet.

The Appeals Chamber recalled that the Prosecution’s disclosure obligations under Rule 68 of the Rules are positive and continuous and consist of its duty to, as soon as practicable, disclose to the Defence any material which in its actual knowledge may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence. The Appeals Chamber also noted that the assessment of such material lies with the Prosecution’s discretion which is presumed to be exercised bona fide, unless proven to be abusive.

7. La Chambre d’appel rappelle que les éléments de preuve relevant de l’article 68 du Règlement sont ceux de nature à disculper en tout ou en partie l’accusé ou à porter atteinte aux éléments de preuve du Procureur[1] et que l’obligation de communiquer ces éléments est une obligation permanente qui subsiste après le procès en première instance, y compris durant la procédure d’appel[2]. Etant donné que c’est au Procureur qu’il appartient de déterminer quels sont les documents qui répondent aux critères énoncés par l’article 68 du Règlement, la Chambre d’appel présume que le Procureur agit de bonne foi et elle n’intervient pas dans l’exercice de cette appréciation discrétionnaire à moins qu’il ne soit démontré que le jugement du Procureur en la matière est abusif[3]. […]

14. […] The Appeals Chamber considers that the statements attached to the Investigation Report fall within the scope of Rule 66(B) and are not protected by Rule 70[1] and therefore, should have been communicated to the Appellant upon his request for them. The report also mentions two interviews with Witness EB conducted by the Prosecution’s Investigators in March 2006;[2] however, no information in this respect was communicated to the Appellant prior to the present Motion.[3]

15. In light of the above, the Appeals Chamber concludes that the Prosecution acted in violation of its obligations under Rule 66(B) in this case. […]

16. […] the Appeals Chamber has already considered that these documents are irrelevant to the preparation for the appeals hearing on 16 January 2007[4] and therefore finds that the question as to whether the Prosecution acted in violation of Rule 66(B) with respect to these documents needs not be considered.

262. The Appeals Chamber recalls that the ICTY Appeals Chamber has affirmed that the Prosecution has the obligation to determine whether evidence is exculpatory under Rule 68.[1] This Appeals Chamber follows that position and considers that in order to allege a breach of Rule 68, the Defence must first establish that the evidence was in the possession of the Prosecution, and then must present a prima facie case which would make probable the exculpatory nature of the materials sought.[2] If the Defence satisfies the Tribunal that the Prosecution has failed to comply with its Rule 68 obligations, then the Tribunal must examine whether the Defence has been prejudiced by that failure before considering whether a remedy is appropriate.[3]

263. The Appeals Chamber finds that in the present case, the Appellant has failed to demonstrate that the Trial Chamber erred in finding that the Prosecution was not in possession of any prior statements the detained witnesses may have given to the Rwandan authorities. The Appellant rather appears to argue that since the detained witnesses were called by the Prosecution, it was the Prosecution’s duty to obtain the statements. The Appeals Chamber does not accept such an extension of the scope of Rule 68.

At para. 16, the Appeals Chamber sets clearly the criteria of determination of the documents which are material to the preparation of the defence:

16. In addition, while the parties do not refer to Rule 66(B) of the Rules, the Appeals Chamber notes that the Appellant’s request appears to fall under this provision since he is seeking access to documents that would be material to the preparation of his defence with respect to the cross-examination of Witness EB at the evidentiary hearing or might be intended for use by the Prosecution as evidence on that occasion. It has already been clarified that Rule 66(B) applies to appellate proceedings and that, consequently, the Prosecution, on request of the Defence, “has to permit the inspection of any material which is capable of being admitted on appeal or which may lead to the discovery of material which is capable of being admitted on appeal”.[1] In this respect, the Appeals Chamber recalls that “purely inculpatory material is not necessarily immaterial for the preparation of the Defence” and that the Prosecution should instead consider “(a) whether the issues to which the material relates are subject of a ground of appeal” or “(b) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible under Rule 115 of the Rules”.[2] Therefore, the Appeals Chamber proprio motu directs the Prosecution to apply the above-mentioned criteria in order to determine whether it is in possession of any documents that are material to the preparation of the Defence, with the exception of Rule 70 material as discussed above, and then return, if necessary, to the Appeals Chamber for permission to withhold any information provided by these sources under Rule 66(C) of the Rules.

30. Pursuant to Rule 66(A)(ii) of the Rules, the Prosecutor has a duty, inter alia, to make available to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial. The Appeals Chamber notes that neither the ICTR nor ICTY has provided a clear definition of the term “statement.” In particular, the jurisprudence has not made a clear distinction between “statements” and “internal documents prepared by a party [which] are not subject to disclosure or notification”[1] under Rules 66 and 67 of the Rules.[2]

31. A record of a witness interview, ideally, is composed of all the questions that were put to a witness and of all the answers given by the witness. The time of the beginning and the end of an interview, specific events such as requests for breaks, offering and accepting of cigarettes, coffee and other events that could have an impact on the statement or its assessment should be recorded as well.

32. Such an interview must be recorded in a language the witness understands. As soon as possible after the interview has been given, the witness must have the chance to read the record or to have it read out to him or her and to make the corrections he or she deems necessary and then the witness must sign the record to attest to the truthfulness and correctness of its content to the best of his or her knowledge and belief. A co-signature by the investigator and interpreter, if any, concludes such a record.

33. Records of questions put to witnesses by the Prosecution and of the answers given constitute witness statements pursuant to Rule 66(A)(ii) of the Rules. It is necessary to disclose the questions put to the witness in order to make the statement intelligible. This obligation also follows from the fair trial guarantees stipulated in Articles 19 and 20 of the Statute. Furthermore, an accused must have access to the questions put to the witness in order to be able to prepare for cross-examination properly. At times, it may be impossible to assess the probative value of the witness’s answer without juxtaposing it with the relevant question. This may also affect a Chamber’s assessment of the credibility of the witness and the reliability of a testimony in its development. The record of the first interview with a witness is of the highest value because it is most likely to capture the witness’s recollection accurately, being closest in time to the events and less vulnerable to any subsequent influence.

34. Questions that were put to a witness – thus being part of the witness statement – have to be distinguished from “internal documents prepared by a party”,[3] which are not subject to disclosure under Rule 70(A) of the Rules, as an exception to the general disclosure obligation pursuant to Rule 66(A)(ii) of the Rules. A question once put to a witness is not an internal note any more; it does not fall within the ambit and thereby under the protection of Rule 70(A) of the Rules. If, however, counsel or another staff member of the Prosecution notes down a question prior to the interrogation, without putting this question to the witness, such a question is not subject to disclosure. Similarly, any note made by counsel or another staff member of the Prosecution in relation to the questioning of the witness is not subject to disclosure, unless it has been put to the witness.

35. The fact that a particular witness statement does not correspond to the standard set out above does not free a party from its obligation to disclose it to the other party pursuant to Rule 66(A)(ii) of the Rules. Furthermore, a witness statement which does not correspond to the standard set out above does not necessarily render the proceedings unfair. The Prosecution is obliged to make the witness statement available to the Defence in the form in which it has been recorded. However, something which is not in the possession of or accessible to the Prosecution cannot be subject to disclosure: nemo tenetur ad impossibile (no one is bound to an impossibility).[4]

36. Also, a statement not fulfilling the ideal standard set out above is not inadmissible as such. Pursuant to Rule 89(C) of the Rules, a Chamber may admit any relevant evidence which it deems to have probative value. However, any inconsistency of a witness statement with the standard set out above may be taken into consideration when assessing the probative value of the statement, if necessary.

16. The Appeals Chamber recalls that, in order to show that the Prosecution is in breach of its disclosure obligation pursuant to Rule 68(A) of the Rules, the Defence must identify specifically the materials sought, present a prima facie showing of their probable exculpatory nature, and prove the Prosecutor’s custody or control of the materials requested.[1] Thus, contrary to the Appellant’s submission,[2] his burden of proof could not be met by merely showing a prima facie case of custody or advancing a “presumption of possession”.

In the present case, the Prosecution argued that it could discharge its Rule 68 disclosure obligations through the EDS. The Appeals Chamber dismissed the Prosecution’s appeal, holding that the EDS does not discharge the Prosecution of its positive obligation to disclose exculpatory material in its possession. The full reasoning is provided below (paras 8-16):

8. The Prosecution argues that the Trial Chamber erred as a matter of law in finding that it cannot discharge its disclosure obligations under Rule 68 by making the Prosecution evidence collection and other relevant materials accessible to the Defence through the EDS.[1] In identifying the Trial Chamber’s alleged legal error, the Prosecution contends that the Trial Chamber failed to appreciate the searchable format of the EDS.[2] However, in the very same passage upon which the Prosecution relies in support of this proposition, the Trial Chamber clearly expressed that the EDS, “allows the Defence to do its searches for exculpatory material.”[3] Consequently, the Appeals Chamber cannot agree that the Trial Chamber failed to appreciate this aspect of the EDS. Rather, in the view of the Appeals Chamber, the Prosecution appears to take issue with the Trial Chamber’s finding that the Prosecution has a “positive obligation” to disclose Rule 68 material “in its possession” to individual accused.[4] The Appeals Chamber, however, can identify no legal error on the part of the Trial Chamber in holding that the Prosecution has a positive obligation to disclose exculpatory material in its possession.

9. The Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[5] The Appeals Chamber has always interpreted this obligation broadly.[6] The positive nature of this obligation and its significance stem from the Prosecution’s duty to investigate, which the Appeals Chamber has explained runs conterminously with its duty to prosecute.[7] In particular, the Appeals Chamber recalls that one of the purposes of the Prosecution’s investigative function is “to assist the Tribunal to arrive at the truth and to do justice for the international community, victims, and the accused.”[8] The responsibility for disclosing exculpatory material rests on the Prosecution alone, and the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement, falling within the Prosecution’s responsibility.[9] In other words, the Prosecution has a distinct obligation to participate in the process of administering justice by disclosing to the Defence, as required by Rule 68(A), material which it actually knows “may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution evidence”. This responsibility is crucial to the analysis.

10. Bearing these principles in mind, the Prosecution must actively review the material in its possession for exculpatory material[10] and, at the very least, inform the accused of its existence.[11] In the view of the Appeals Chamber, the Prosecution’s Rule 68 obligation to disclose extends beyond simply making available its entire evidence collection in a searchable format. A search engine cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession. As such, the Appeals Chamber can identify no legal error on the part of the Trial Chamber in finding that the EDS, as described by the Prosecution, fails to fulfill these important and expansive obligations.

11. The Prosecution’s reasoning includes the following two steps. First, it argues that paragraphs (A) and (B) of Rule 68 establish two distinct disclosure obligations covering different categories of materials: paragraph (A) applies to materials that the Prosecution actually knows may be exculpatory, while paragraph (B) applies more broadly to all “collections of relevant material”, whether or not the Prosecution knows that they may be exculpatory. Second, it argues that when the Prosecution provides the defence with an electronic collection of relevant materials in satisfaction of its obligation under paragraph (B), that also satisfies its obligations under paragraph (A) with respect to any materials governed by paragraph (A) that may be found somewhere within the collection. The Appeals Chamber notes that while the first step of the Prosecution’s argument appears to embrace a rather broad interpretation of the Prosecution’s disclosure obligations, the second step would have the effect of curtailing them by making it unnecessary for the Prosecution to draw the attention of the Defence to the particular material that it actually knows may be exculpatory.

12. The Appeals Chamber observes several flaws in the Prosecution’s reasoning. The Prosecution’s obligation to disclose to the defence material that may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence is set forth in Rule 68(A).[12] It is only Rule 68(A) that articulates which material is subject to disclosure under this rule and which obliges the Prosecution to disclose it. Rule 68(B) does not establish a distinct disclosure obligation.[13] Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an electronic format, after the Prosecution identifies it as “relevant material” which is subject to disclosure under Rule 68. This is supported by the plain language of sub-paragraph B of Rule 68 and by its drafting history, which focused on the technical feasibility of providing to the defence electronic versions of documents subject to Rule 68 disclosure.[14]

13. Thus, disclosure under Rule 68(B) is merely the digital equivalent of disclosure under Rule 68(A), consisting of the same material in searchable electronic form. For these reasons, for the Prosecution to seek to satisfy its Rule 68 obligations merely by granting the Defence access to an electronic database containing tens of thousands of documents, only a few of which it knows to be potentially exculpatory, is the equivalent of the Prosecution seeking to satisfy those obligations by giving the Defence a key to a storage closet containing the same tens of thousands of documents in paper form. In both cases, the Prosecution has for all intents and purposes buried the exculpatory materials, at least unless it notifies the Defence of the existence of such materials and provides a means by which the Defence can be reasonably expected to find them. Rule 68(B) was not intended to facilitate this kind of evasion of the Prosecution’s disclosure obligations. Indeed, its text makes clear that it is in no way intended to dilute or circumvent Rule 68(A)’s requirements: it states that it is “without prejudice to paragraph (A)”.[15]

14. The Prosecution’s second principal argument on appeal is that, by creating the EDS and by making it searchable, its collection is now “reasonably accessible” to the defence, which is a recognized exception to its obligation to disclose.[16] By way of illustration, the Prosecution refers to Appeals Chamber jurisprudence indicating that transcripts of open session testimony are not subject to disclosure as they are “reasonably accessible”.[17] Mr. Nzirorera disputes this claim, emphasizing the difficulty of identifying exculpatory material given the redacted nature of the documents on the EDS.[18] The Prosecution counters that Mr. Nzirorera’s complaints are belied by his possession of material, which it surmises came from the EDS, thereby demonstrating its proper functioning.[19] The Appeals Chamber observes that it is not clear from the record how Mr. Nzirorera obtained the material he used to demonstrate that the Prosecution was in breach of its disclosure obligations.

15. The Appeals Chamber agrees that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence.[20] On the basis of the record before it, however, the Appeals Chamber cannot find that the EDS makes documents reasonably accessible as a general matter, nor that the Defence can be assumed to know about all materials included in it. The determination whether given exculpatory information is reasonably accessible, and whether its existence is known to the Defence requires a careful examination of the relevant circumstances.[21] This is true for material on the EDS – especially given that, as Mr. Nzirorera notes, it may be difficult to recognize material as exculpatory if it is only available in redacted form – just as it is true for material not found on this system. The Appeals Chamber has not been asked to decide here whether the Prosecution satisfied its disclosure obligation with respect to any particular piece of information. The Appeals Chamber cautions the Prosecution, however, that just because it has placed a particular piece of material on the EDS, it has not necessarily made that piece of material “reasonably accessible” to any given accused. It might be helpful if the Prosecution either separates a special file for Rule 68 material or draws the attention of the Defence to such material in writing and permanently updates the special file or the written notice.

79. The Appeals Chamber recalls that the conduct of trial proceedings, including decisions on protective measures and disclosure, is a matter which falls within the discretion of Trial Chambers. This discretion encompasses the ability of a Trial Chamber to revisit its previous decisions. In this regard, it recalls that Rule 69(A) of the Rules explicitly provides that the Trial Chamber may order the non-disclosure of the identity of a victim or witness “until the Chamber decides otherwise”. Accordingly, the fact that there was already an existing protective measures order in Nsengiyumva’s case which the Trial Chamber replaced does not in itself amount to an error. Nonetheless, the Appeals Chamber will now consider whether the Decision on Protective Measures of 7 December 2001[[2]] was in conformity with the Rules.

81. In its Decision on Protective Measures of 7 December 2001, the Trial Chamber acknowledged that the plain language of Rule 69(C) of the Rules required the Prosecution to disclose all protected witnesses’ identifying data prior to the commencement of trial.[3] Nevertheless, it concluded that a departure from the plain language of the Rule was justified by the objective of providing meaningful protection for victims and witnesses.[4] Following consultation with the Witnesses and Victims Support Section of the Prosecution (“WVSS-P”), it found that this unit was unable to place under its protection all the witnesses in the case at the same time.[5] It considered that neither the mandate of witness protection nor the necessity of ensuring that the accused had sufficient time to prepare his defence could be sacrificed and reasoned that “a proper balance must be struck to determine what amount of advance disclosure is strictly necessary to serve the twin aims of Rule 69”.[6] The Trial Chamber concluded that to require the Prosecution to disclose unredacted witness statements and protected witnesses’ identifying data prior to the commencement of trial was “ill advised because it would unnecessarily tax any real notion of witness protection without advancing the Accused’s right to effective cross-examination in any meaningful way”.[7]

82. Although the disclosure requirements under Rule 66 of the Rules are subject to Rule 69, the Appeals Chamber recalls that while a Trial Chamber may order the non-disclosure of the identity of a victim or witness who may be in danger or at risk pursuant to Rule 69(A) of the Rules, it must first establish the existence of exceptional circumstances. In the Decision on Protective Measures of 7 December 2001, the Trial Chamber referred to “the existence of the exceptional circumstance”,[8] without elaborating on what it considered to amount to the exceptional circumstance justifying the non-disclosure of the victims’ and witnesses’ identity. The Appeals Chamber notes, however, that the Trial Chamber recalled that it had consulted with WVSS-P[9] and considered that WVSS-P had informed the Trial Chamber that it lacked the capacity and resources to place all the witnesses under protection at the same time.[10] The Appeals Chamber understands that the Trial Chamber considered that this inability to provide protection to all the witnesses at the same time amounted to an exceptional circumstance warranting the delayed disclosure of the identity of the witnesses. The Appeals Chamber does not find error in this approach.

83. Nevertheless, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony. While a Trial Chamber has discretion pursuant to Rule 69(A) of the Rules regarding the ordering of protective measures where it has established the existence of exceptional circumstances, the Appeals Chamber recalls that this discretion is still constrained by the scope of the Rules. In this regard, it notes that at the time of the decision, Rule 69(C) of the Rules provided that “the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence”.[11]

84. Furthermore, the Appeals Chamber does not consider that, as stated by the Trial Chamber, such disregard for the explicit provision of the Rules was necessary for the protection of witnesses.[12] It notes that in the previous witness protection decision in the Nsengiyumva case prior to the joinder, the Trial Chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the Tribunal, but had nonetheless required that the Defence be provided with unredacted witnesses statements “within sufficient time prior to the trial in order to allow the Defence a sufficient amount of time to prepare itself”.[13] At no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule.

85. In light of the foregoing, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to the trial, as then provided by the Rules. […]

See also para. 80.

8. […] The appropriate procedure for disclosure of materials under Rule 68 of the Rules when a case is before the Appeals Chamber is to serve the Defence with such material.[1] Where the Prosecution files its disclosure with the Registry for purposes of keeping it in the Registry archives, the Prosecution shall do so without copying the Appeals Chamber. Where the Prosecution considers it necessary to advise the Appeals Chamber of its further disclosures of Rule 68 material to the Defence, it may file a status report before the Appeals Chamber informing them of the fact and date but not the nature of that disclosure or the communicated material.

12. The Appeals Chamber hereby INSTRUCTS the Prosecution to follow the procedure described in paragraph eight above for its future disclosures under Rule 68 of the Rules. The Appeals Chamber also INSTRUCTS the Registry to ensure that any copies of disclosures filed with it by the Prosecution are to be kept in its records without communicating the disclosed material to the Appeals Chamber.

33. […] The Appeals Chamber […] observes “that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence”.[1] As noted above, the document was known to the Appellant, and he has not demonstrated that the document was not reasonably accessible to him.

34. […] In this respect, the Appeals Chamber notes that, if an appellant wishes to show that the Prosecution is in breach of these obligations, he/she must identify specifically the materials sought, present a prima facie showing of its probable exculpatory nature, and prove the Prosecutor's custody or control of the materials requested.[1] Finally, even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will still examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2] The Appeals Chamber is neither satisfied that the document is of prima facie exculpatory nature, nor that the alleged Prosecution’s failure to communicate it to the Appellant would have caused him any prejudice.[3]

15. Before considering what the Prosecution’s duty of disclosure is under sub-Rule 66 (A) (ii) of the Rules, it is necessary to consider whether the testimony given by a witness in a case can constitute a “witness statement” within the meaning of the sub-Rule. The Rules do not define what constitutes a witness statement.  The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime.  The Appeals Chamber is of the view that when a witness testifies during the course of a trial before the Tribunal, the witness’s verbal assertions recorded by the Registry’s technical staff through contemporaneous transcription, are capable of constituting a witness statement within the meaning of sub-Rule 66 (A) (ii).  The testimony will constitute such a witness statement and therefore be subject to disclosure, only if the witness is intended to be called, in accordance with the sub-Rule, to testify in subsequent proceedings in relation to the subject-matter of the testimony.  In other words, the testimony is a witness statement for the subsequent proceedings.

16. It follows that the Prosecution does have a duty to disclose such witness statements to the Defence under certain conditions.  Whether or not they should be “made available” pursuant to sub-Rule 66 (A) (ii) depends upon the stage of the proceedings that a case has reached.  […] [T]he sub-Rule should be given its plain meaning that, once a witness has given evidence in court, the Prosecution can no longer intend to call that witness to testify, and that there is therefore no obligation to make available any subsequent statements from the witness, unless the witness will be recalled as an additional Prosecution witness in the sense of the sub-Rule. […]

17. The Appeals Chamber is also of the view that sub-Rule 66 (A) (ii) can be applied, mutatis mutandis, in appeals, pursuant to Rule 107. Additional evidence may be admitted on appeal by way of Rule 115, and prior to the presentation of such evidence through witnesses under the rule, the presenting party shall follow the procedure of sub-Rule 66 (A) (ii) to disclose witness statements to the other party.

[RULE 66(A)(II) WAS AMENDED ON 1 DECEMBER 2000, 13 DECEMBER 2000, AND 13 SEPTEMBER 2006.]

35. Finally, with respect to the issue of placing documents on the EDS, the Appeals Chamber recalls that Rule 68(ii) allows the Prosecution to do so “without prejudice to paragraph (i)”. In this sense, the Practice Direction Establishing Restrictions on Dissemination of Material Disclosed to the Defence by the Prosecutor on the “Electronic Disclosure System”, provides that the EDS is a system created “[i]n connection with the discharge of disclosure obligations” but “does not affect the Prosecutions obligations to disclose material under the Rules”.[1] The Appeals Chamber of the International Criminal Tribunal for Rwanda has recently specified that the Prosecution’s obligation under this provision “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”.[2] The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation.[3] The Appeals Chamber also notes that the EDS database does not allow an accused on one case to access materials disclosed by the Prosecution to an accused in another case.[4] It has thus been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”.[5]

29. The Appeals Chamber recalls that the Prosecution has a positive and continuous obligation[1] under Rule 68 of the Rules to, “as soon as practicable, disclose to the Defence any material which in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The application of this provision is not confined to the trial process and continues throughout the proceedings on the relevant case before the Tribunal.[2]

30. Determining what material meets Rule 68 disclosure requirements falls within the Prosecution’s discretion and its initial assessment of such exculpatory material must be done in good faith.[3] However, Rule 68(i) does not impose an obligation on the Prosecution to search for materials which he does not have knowledge of, nor does it entitle the Defence to embark on a fishing expedition to obtain exculpatory material.[4] It does not confer on the Accused a general right of access to the Prosecution’s files.[5] Indeed, when an accused asks a Chamber to order the production of material, the accused’s request “has to be sufficiently specific as to the nature of the evidence sought and its being in the possession of the addressee of the request”.[6] At the same time, such request is not required to be “as specific as to precisely identify which documents should be disclosed”.[7] The Appeals Chamber also notes that the Prosecution may be relieved of the obligations under Rule 68, “if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation”.[8]

12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

24. The Appeals Chamber notes that Rule 67(D) of the Rules provides that

[i]f either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

The Appeals Chamber considers that Rule 67(D) of the Rules also applies to materials subject to an inspection request pursuant to Rule 66(B) of the Rules.[10] Once the Defence files an inspection request pursuant to Rule 66(B) of the Rules, the Prosecution is under an obligation to permit inspection of the requested materials, provided that the requisite standards for such a request are met. This puts the requested records into the category of material “which should have been produced earlier” within the meaning of Rule 67(D) of the Rules. Accordingly, where such materials come into the Prosecution’s possession subsequent to an inspection request from the Defence, the Prosecution is under a continuous obligation to promptly notify the Defence of their existence.

25. However, the Appeals Chamber reiterates that a continuous obligation to notify a party of inspection material pursuant to Rule 67(D) of the Rules can only arise where the underlying request reaches a degree of specificity that allows a direct and unambiguous identification of the sought material as squarely falling into the ambit of that request. This requires, as a minimum, the specificity described below.

6. If Rule 70(F), however, is read in the context of Rule 70 as a whole it becomes apparent that the Trial Chamber erred in adopting such a strict interpretation of Rule 70(F). Under Rule 70(B), information obtained by the Prosecution on a confidential basis is automatically subject to the confidentiality protection of Rule 70. Thus, when requesting a third party to provide it with confidential information the Prosecution can, at that time, guarantee to the provider that the confidentiality of the information will be protected. Rule 70(F) provides that, upon application by the Defence, the provisions of Rule 70 that apply to the Prosecution shall apply mutatis mutandis to “specific information in the possession of the accused”. If the protection accorded to the Prosecution is to apply mutatis mutandis to the Defence, Rule 70(F) falls to be interpreted as enabling the Defence to request a Trial Chamber that it be permitted to give the same undertaking as the Prosecution to a prospective provider of confidential material that that material will be protected if disclosed to the Defence. The purpose of Rule 70(F) is to encourage third parties to provide confidential information to the Defence in the same way as Rule 70(B) encourages parties to do the same for the Prosecution[1], regardless of any further disclosure of that confidential information.

7. Read within the context of the Rule therefore, and with its purpose in mind, the reference of Rule 70(F) to “specific information in the possession of an accused” is not a condition of the making of an order that the Rule applies; it is a reference to what the Rule will apply to after the making of an order that it is to apply. The circumstance that the accused is not now in possession of such information is therefore not pertinent.

The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

189. The Defence submits that the Rule 68 disclosures of 25 June 2000 and 5 March 2001 made during trial were buried beneath other material provided at the time, and that the failure of the Prosecution to identify the disclosed material as being disclosed under Rule 68 breached the spirit and letter of that Rule.[1] In response, the Prosecution argues that there is no specific requirement obliging it to indicate the provision in accordance with which a disclosure of documents occurs, or to identify the specific material disclosed as exculpatory.[2]

190. The Appeals Chamber agrees with the Prosecution that Rule 68 does not require the Prosecution to identify the material being disclosed to the Defence as exculpatory. The jurisprudence of the Tribunal shows that while some Trial Chambers have recognised that it would be fairer for the Prosecution to do so,[3] there is no prima facie requirement, absent an order of the Trial Chamber to that effect, that it must do so.

191. However, the fact that there is no prima facie obligation on the Prosecution to identify the disclosed Rule 68 material as exculpatory does not prevent the accused from arguing, as a ground of appeal, that he suffered prejudice as a result of the Prosecution’s failure to do so.

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

The Appeals Chamber recalled the standard of proof for alleged Rule 68 violations:

13. To establish a violation of the Rule 68 disclosure obligation, the Defence must (i) establish that additional material exists in the possession of the Prosecution; and (ii) present a prima facie case that the material is exculpatory.[1]

16. […] The responsibility for disclosing exculpatory material rests on the Prosecution, and the determination of what material meets Rule 68 disclosure requirements is primarily a facts-based judgement, falling within the Prosecution’s responsibility.[2]

17. The Appeals Chamber cannot fault the Trial Chamber for requesting Mr. Nzirorera to provide an “evidentiary basis” for his claims that the material fell within the scope of Rule 68, contrary to the assertions of the Prosecution.[3] The Trial Chamber is entitled to assume that the Prosecution is acting in good faith.[4] […]

52.     The Appeals Chamber further recalls that decisions of individual trial chambers have no binding force on other trial chambers.[1] A trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Consequently, two reasonable triers of facts may reach different but equally reasonable conclusions when determining the probative value of the evidence presented at trial.[3] Likewise, the Appeals Chamber considers that an assessment as to whether the defence has been prejudiced by the Prosecution’s disclosure violations and whether a remedy is appropriate depends on the particular circumstances of the case.[4] An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way.[5]

See also paras 257, 262, 439, 543.

435. The Appeals Chamber observes that the Rules, which specifically impose the disclosure of all witnesses’ statements and their identity, do not provide for the disclosure of the identity of the witnesses’ parents.[1] Nyiramasuhuko’s submissions, in fact, merely reflect her disagreement with the Trial Chamber’s exercise of its discretion in denying disclosure to the Defence of the identity of the Prosecution witnesses’ parents. […]

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

18.     The Appeals Chamber turns to Niyitegeka’s contention that the Single Judge erred in failing to consider that all the statements and testimony of the 12 Prosecution witnesses given subsequent to his own proceedings constitute potentially exculpatory material subject to disclosure under Rule 73 of the Rules. In this respect, the Appeals Chamber recalls that Rule 73(A) of the Rules imposes upon the Prosecution a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The determination as to which material is subject to disclosure under Rule 73 of the Rules is a fact-based enquiry made by the Prosecution. A chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will presume that the Prosecution is acting in good faith. Niyitegeka demonstrates no error in the Single Judge’s determination that, with respect to Niyitegeka’s present request for disclosure, there was no reason to doubt that the Prosecution was complying with its continuous disclosure obligations in good faith. The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.

19.     […] [T]he Appeals Chamber recalls that the Office of the Prosecutor has a duty to utilize procedures designed to ensure that, particularly in instances where the same witnesses testify in different cases, the evidence provided by such witnesses is re-examined in light of Rule 73 of the Rules to determine whether any material has to be disclosed.[6] This obligation reflects the possibility that statements or testimony given by a witness in a subsequent proceeding may contain material subject to disclosure under Rule 73 of the Rules and underscores that, as noted above, determining what is subject to disclosure is a fact-based enquiry by the Prosecution. […] Furthermore, Rule 73 of the Rules limits the Prosecution’s obligation to the disclosure of material that “in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[8] To the extent Niyitegeka considers that the Prosecution may be unaware of information that may impact the assessment of whether material in its possession is subject to disclosure under Rule 73 of the Rules, he may share such information with the Prosecution. In light of the foregoing, the Appeals Chamber finds that Niyitegeka fails to establish that the Single Judge committed a discernible error by not determining that all the statements and transcripts of evidence given by the 12 Prosecution witnesses during proceedings subsequent to the conclusion of Niyitegeka’s case constitute material subject to disclosure pursuant to Rule 73 of the Rules.

89. […] [T]he Appeals Chamber recalls that the right to be tried without undue delay is enshrined in Article 21(4)(c) of the ICTY Statute and protects an accused against undue delay, which is determined on a case-by-case basis.[1][DT1]  A number of factors are relevant to this assessment, including the length of the delay, the complexity of the proceedings, the conduct of the parties, the conduct of the relevant authorities, and the prejudice to the accused, if any.[2]

90. Bearing this in mind, the Appeals Chamber is not persuaded that the suspensions ordered by the Trial Chamber unduly delayed the proceedings or resulted in per se prejudice to Karadžić. Suspensions due to extensive disclosure in the midst of proceedings are precisely the remedy that may be necessary to ensure an accused’s right to a fair trial.[3] In this case, the orders suspending the proceedings expressly sought to strike a balance between Karadžić’s right to a trial without undue delay and his right to have adequate time and facilities for the preparation of his defence.[4] The relevant decisions provided Karadžić the time to review and incorporate newly disclosed material into his trial preparations and instructed the Prosecution to devote its resources to reviewing information in its possession to ensure that all necessary disclosure was complete.[5] Finally, Karadžić has not shown that the individual or cumulative duration of any suspensions ordered unduly delayed the proceedings.

77.  The Appeals Chamber notes that there is no requirement in the jurisprudence that unauthorised disclosure of protected information must take place in a public domain or be accessible to the general public in order to amount to an interference with the administration of justice under Rule 90(A)(ii) of the Rules.[1] In addition, the Rules and previous contempt jurisprudence do not sustain the proposition that release of protected information does not amount to “disclosure” in circumstances where the recipient is already in possession of such information. To the contrary, the ICTY Appeals Chamber in the Jović case expressly confirmed that the fact that protected information may have been previously disclosed by a third party does not mean that such information is no longer protected or that its subsequent disclosure will not be in violation of a court order.[2]The Appeals Chamber considers that the Jović Contempt Appeal Judgement and the Nshogoza Contempt Appeal Judgement both support the principle that release, whether in a public or private domain, of protected information may constitute unauthorised disclosure, irrespective of whether the intended recipient of such information was already aware of it due to previous disclosure by another person.